Campaign justice: crowdfunding for private prosecutions

A jury has cleared a woman accused of killing a cyclist through careless driving in what is believed to be the first entirely crowdfunded UK private prosecution case. David Jugnarain, partner at Edmonds Marshall McMahon, examines the implications of the case for practitioners and explores recent trends in funding private prosecutions.

Who was responsible for bringing the claim and what was the outcome?

The Cyclists Defence Fund (CDF) was set up in 2001 as a subsidiary of registered charity Cycling UK to fight legal cases involving cyclists and cycling. Following the tragic death of a cyclist in a road traffic accident in 2014, CDF instructed Edmonds Marshall McMahon to act on its behalf in bringing a private prosecution against a driver for the offence of causing death by careless driving.

As far as I am aware, this case was not only the first crowdfunded private prosecution to come to trial, it was also the first time a private prosecution has been brought for the offence of causing death by careless driving.

The Metropolitan police had conducted an investigation in the immediate aftermath of the collision that killed Mr Mason, but the case was never referred to the Crown Prosecution Service (CPS) for a charging decision.

Attempts by Mr Mason’s family to challenge the refusal of the Metropolitan Police not to refer the matter to the CPS proved to be in vain and without a CPS referral, there was no hope of a public prosecution taking place.

CDF used crowdfunding to raise the necessary funds to pursue a private prosecution in this case, and for other legal challenges that might be pursued to support the proper administration of justice for cycling and cyclists.

The trial commenced at the Central Criminal Court on 3 April 2017 before HHJ Gordon. Simon Spence QC appeared on behalf of the prosecution. The jury listened carefully and patiently to all of the evidence adduced by the prosecution. A not guilty verdict was returned on 6 April 2017.

Implications of a not guilty verdict

A not guilty verdict does not mean that a prosecution should not have been brought. During the trial HHJ Gordon ruled that there was a case for the defendant to answer, that is to say that on the evidence, a properly directed jury could conclude that the defendant was guilty.

It is right that those who are innocent be found not guilty. It also right that in cases where there is sufficient evidence and it is in the public interest, that it is a decision that is reached by a jury. For many, ‘justice’ is to be found in the process, not merely the result.

Are there specific platforms dedicated to funding such legal actions and if so, what is the criteria to be eligible?

In recent years crowdfunding models have grown across a diverse range of sectors, including legal services. The funding of litigation by third parties as a commercial enterprise is far from a new phenomena. However, cases involving areas such as criminal law and public law rarely attract such funders. For those who would otherwise be denied access to justice, and where there may be a wider public interest, crowdfunding platforms provide a valuable opportunity to raise voluntarily donated funds.

A number of platforms have been used to crowdfund various types of litigation and there are now platforms dedicated to legal crowdfunding. For example, CrowdJustice provides a platform for individuals and lawyers to seek funding. To be eligible, lawyers must have been instructed by the time the case is published on the site. Funds are only collected once an initial funding target is met within a given timeframe. The funds raised go directly toward the legal expenses and are credited to the lawyers client account. Prominent current projects include the well-publicised ‘Uber must pay all of its taxes’ campaign lead by the Good Law Project, which at the time of writing has raised in excess of £100,000.

Other platforms include Crowdfunder, which allows fundraising for a wide range of commercial and social interest purposes, including litigation. This was used by #BrexitJustice to raise funds for instructing lawyers to undertake litigation, including a private prosecution, in respect of an allegation that certain individuals deliberately misled the public during the EU referendum.

CDF used Justgiving which allows for money to be raised for registered charities, as well as for crowdfunding for local causes and individuals.

Unlike commercial litigation funders, individuals who collectively crowdfund a case through platforms such as these will not usually expect to receive their money back. This model is therefore particularly apt for cases with a social interest, where there is a benefit to the public at large.

Do you envisage that more cases of this kind will be brought through crowdfunding in the future as traditional sources of public funding for cases dry up?

In short, yes. In the current climate of austerity, budgetary constraints and crimes of increasing complexity the use of private prosecutions is undoubtedly on the increase. In 2014 the Lord Chief Justice of England and Wales noted ‘there is an increase in private prosecutions at a time of retrenchment of state activity in many areas where the state had previously provided sufficient funds to enable state bodies to conduct such prosecutions’ (R (Virgin Media) v Zinga[2014] EWCA Crim 52, [2014] All ER (D) 211 (Jan)). Those crimes which do not pose an immediate safety risk to the public are undoubtedly seen as a lessor priority, particularly economic crime.

Those unable to gain access to justice through traditional means will inevitably look to other ways of doing so. In Gouriet v Union of Post Office Workers [1977] UKHL 5, [1977] 3 All ER 70, Lord Wilberforce stated that ‘the individual, in such situations, who wishes to see the law enforced has a remedy of his own: he can bring a private prosecution. This historical right which goes right back to the earliest days of our legal system… remains a valuable constitutional safeguard against inertia or partiality on the part of authority’. Lord Diplock added that private prosecutions are ‘a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders against the criminal law’.

Legal aid is not available to fund private prosecutions. However, at the conclusion of a prosecution for an indictable offence (one which can be tried in the Crown Court) an application can be made to recover the reasonable expenses incurred by the private prosecutor in bringing the proceedings. This application can be made irrespective of the outcome of a prosecution and ought to be successful, save where the proceedings were instituted or continued without good cause, or where there has been misconduct.

Despite the ability to ultimately recover expenses, for many, the upfront costs of pursuing a private prosecution with the assistance of lawyers will be prohibitive. It is here that crowdfunding might play a significant role in enabling those with a proper case to raise the necessary finds to bring a case where members of the public are sufficiently motivated to offer their support.

Are there any restrictions in terms of how crowdfunded resources are used, ie does the person have to put it towards the legal case or can they use it to crowdfund a salary or cover personal expenses while working on the case?

The restrictions on how money raised through crowdfunding can be used will be dependent on various factors, including:

the specific platform through which money is raised—platforms such as CrowdJustice require that money be paid to the account of legal representatives

whether the body seeking funding is a registered charity, if it is then regulatory restrictions and considerations will apply

the specific wording of the appeal and in particular the extent to which it is restricted for use on specific purposes

For those sites that do not require money to be paid directly to lawyers (such as CrowdJustice) funds can be raised for a variety of purposes, including a salary and personal expenses. Ultimately, it will be for members of the public to decide whether they wish to donate to a particular project. For example, the founder of #BrexitJustice, Marcus J Ball, set up two separate projects on crowd funder, one to fund legal action and another to fund a salary and expenses to enable him to run #BrexitJustice.